U.S. Equal Employment Opportunity Commission sent this bulletin at 05/02/2016 03:11 PM EDT

Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964

“Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

In addition to other federal laws, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:
denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi: “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

From Hultman Sensenig + Joshi: The EEOC and the DOL have been very active lately with issuing new guidelines. Employers should take note as to all of this activity and respond proactively by reviewing policies and procedures and looking at inclusivity in the workplace. As you consider such policies, consider the costs of litigation – and the impact of being the employer that makes a splash in the local media for alleged discriminatory practices. Reading this blog does not create an attorney client relationship nor is legal advice being provided by your reading this blog.

]]>https://senseniglawfirm.wordpress.com/2016/05/05/eeoc-issues-new-fact-sheet-on-lgbttransgender-bathroom-issues/feed/0senseniglawfirmEEOC continues to be on the forefront of LGBT issueshttps://senseniglawfirm.wordpress.com/2016/04/26/eeoc-continues-to-be-on-the-forefront-of-lgbt-issues/
https://senseniglawfirm.wordpress.com/2016/04/26/eeoc-continues-to-be-on-the-forefront-of-lgbt-issues/#respondTue, 26 Apr 2016 15:58:50 +0000http://senseniglawfirm.wordpress.com/?p=302Directly from the EEOC and found on their website:

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

Overview

EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
Through investigation, conciliation, and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias. The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013. A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

The information provided below highlights what you should know about EEOC’s outreach and enforcement in this area.

Examples of LGBT-Related Sex Discrimination Claims

Some examples of LGBT-related claims that EEOC views as unlawful sex discrimination include:
Failing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Denying an employee a promotion because he is gay or straight.
Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

See How to File a Charge of Employment Discrimination for information about filing a Title VII charge of sex discrimination in employment related to gender identity or sexual orientation bias. There is a different complaint process for federal employees.

Applicable Federal Law

EEOC is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee, or former employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who participate in an employment discrimination proceeding – for example by filing an EEOC charge, cooperating with an EEOC investigation, or participating in an employment discrimination lawsuit.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

Over the past several years the Commission has set forth its position in several published decisions involving federal employment. These decisions explain the legal basis for concluding that LGBT-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.

Sex Discrimination – Transgender Status

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.

The Macy decision explains that allegations of gender identity/transgender discrimination necessarily involve sex discrimination. Such cases can be viewed as sex discrimination based on non-conformance with gender norms and stereotypes under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, and based on a plain reading of the statute’s “because of . . . sex” language.

In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

Charge Data

In FY 2015, EEOC received a total of 1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status. This represents an increase of approximately 28% over the total LGBT charges filed in FY 2014 (1,100). EEOC resolved a total of 1,135 LGBT charges in FY 2015, including through voluntary agreements providing approximately $3.3 million in monetary relief for workers and achieving changes in employer policies so that discrimination would not recur. This reflects increases of 34% in the number of resolutions over FY 2014 (847) and 51% in the amount of monetary relief over FY 2014 ($2.19 million). Please refer to the chart which shows charges received or resolved during FY 2015, shown at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Conciliation and Litigation

When the Commission finds reasonable cause to believe that discrimination has occurred, it seeks to resolve the matter voluntarily through informal means of conciliation, conference, and persuasion. If the Commission is unable to secure a voluntary resolution, it has authority to file suit in federal court. In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Read about examples of pending and resolved EEOC litigation involving Title VII sex discrimination claims brought on behalf of LGBT individuals, as well as EEOC amicus briefs filed in suits brought by private individuals raising these issues.

Federal Sector Enforcement

In the federal sector, EEOC has implemented its priority for covering LGBT individuals in a variety of ways:

Tracking gender identity and sexual orientation appeals in the federal sector
Issuing 20 federal sector decisions in FY 2015, including finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process. For example, in Larita G. v. U.S. Postal Service, EEOC Appeal No. 0120142154 (Nov. 18, 2015), EEOC reversed the Agency’s dismissal of a hostile work environment claim on the basis of sexual orientation because such an allegation is necessarily an allegation of sex discrimination under Title VII.
Establishing an LGBT workgroup to further EEOC’s adjudicatory and oversight responsibilities
Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site
Providing technical assistance to federal agencies in the development of gender transition policies and plans
Providing LGBT related outreach to federal agencies through briefings, presentations, and case law updates

Training and Outreach

EEOC is addressing LGBT legal developments in numerous outreach and training presentations to the public. During FY 2015, field office staff conducted more than700 events and reached over 43,000 attendees where LGBT sex-discrimination issues were among the topics discussed. In the federal sector during FY 2015, there were approximately 53 presentations delivered to over 4,400 federal sector audience members. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach, EEOC is distributing a brochure, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Employees.

Resources

The Commission has issued various technical assistance publications on LGBT issues, including:

Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance. For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity. Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII. Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity.

For more go to: https://content.govdelivery.com/accounts/USEEOC/bulletins/1456e7e

From Hultman Sensenig + Joshi: The EEOC continues to confirm its commitment to equality for all and will pursue this commitment through litigation. Employers should review their policies and especially their handbooks to ensure whether recent rulings regarding marriage equality and other rights being granted by the Court are addressed. There is no attorney client relationship created through the reading of this blog, nor is any legal advice being rendered.

]]>https://senseniglawfirm.wordpress.com/2016/04/26/eeoc-continues-to-be-on-the-forefront-of-lgbt-issues/feed/0senseniglawfirmThe Broadway play Urinetown’s theme has become a hashtag #freetopee for transgendered individuals seeking to use a public restroomhttps://senseniglawfirm.wordpress.com/2016/04/17/the-broadway-play-urinetowns-theme-has-become-a-hashtag-freetopee-for-transgendered-individuals-seeking-to-use-a-public-restroom/
https://senseniglawfirm.wordpress.com/2016/04/17/the-broadway-play-urinetowns-theme-has-become-a-hashtag-freetopee-for-transgendered-individuals-seeking-to-use-a-public-restroom/#respondSun, 17 Apr 2016 20:05:20 +0000http://senseniglawfirm.wordpress.com/?p=299The issue of what bathroom a transgendered individual should use has become a hot topic for debate for public schools, for politicians, for businesses and for the LGBT community.

When you have a culture of respect, treating everyone with respect and dignity is the goal. What steps have you taken as a business owner or as manager to help achieve that goal when an employee tells you they are taking steps to become the other gender, and how can you help them with that as related to use of the company bathroom? Be prepared as the EEOC is making the issue of “gender” something they plan to explore through litigation – do you really want to be on the other side of that lawsuit as compared to planning in advance for the day when an employee asks, “Can we talk in private?”

Of all of the government agencies, OSHA has provided guidance on the issue of creating gender neutral bathrooms: https://www.osha.gov/Publications/OSHA3795.pdf

The EEOC has a webpage devoted to the issue of how it believes the LGBT community should be protected from discrimination: https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

As of last month, the EEOC issued a Fact Sheet summarizing its litigation on LGBT issues: https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm

Actual links to the policies above are provided at the bottom of this blog.

From Hultman Sensenig + Joshi: The above and this blurb is not legal advice, nor does reading this blog create any attorney client relationship between the reader and this law firm. Employers should be very aware of the impact this issues has on job seekers looking for a place that shares their values. Creating or reviewing current policies in place regarding discrimination and harassment for the LGBT community, and determining how inclusive such policies are, may solidify a corporate culture based upon respect and help an employer avoid bad press and EEOC litigation in the future. Discussing this issue with your team – and your employment counsel – is a good first step.